DQN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 43
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 43
File number(s): ADG 344 of 2019 Judgment of: JUDGE EGAN Date of judgment: 16 September 2021 Catchwords: MIGRATION – Application for protection visa by first applicant – whether Authority’s failure to consider new information constituted error – whether Authority ought to have sought further information about the first applicant’s medical condition at the time of the protection visa interview – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H(1), 5J, 473CB, 473DC, 473DD. Cases cited: Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481.
APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23.
AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007.
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362.
Minister for Immigration and Border Protection v Pandey [2014] FCA 640.
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submission/s: 1 September 2021 Date of hearing: 1 September 2021 Counsel for the Applicants: Dr S. Churches Solicitor for the Applicants: Bourne Lawyers Counsel for the First Respondent: Mr G. Johnson Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
ADG 344 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: DQN19
First Applicant
EHU19
Second Applicant
EHV19 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
16 SEPTEMBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Further Amended Application for Review filed on 7 April 2021 be dismissed.
3.The First Applicant and Second Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7, 853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The first applicant is a citizen of Iran who arrived in Australia on 26 July 2013 as an unauthorised maritime arrival. [1] The second applicant is the wife of the first applicant. The third applicant is the son of the first and second applicants, and the fourth applicant is their daughter.
[1] Arrival Interview at Court Book (CB) p 1 – 18.
On 19 September 2016, the first applicant was invited to make an application for a Temporary Protection (Subclass 785) Visa or a Safe Haven Enterprise (Subclass 790) Visa (SHEV).
On 23 March 2017, the applicants lodged an application for a SHEV.
On 29 July 2019, a delegate of the Minister refused to grant the visas to the applicants. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate. On 15 August 2019, a representative of the applicants provided new information to the Authority on behalf of the applicants.
On 9 September 2019, the Authority affirmed the decision of the delegate.
On 23 September 2019, the applicants filed an Originating Application for Review of the decision of the Authority.
Consideration of Claims by Authority
At [2] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [8] of its reasons, it was recorded that only the first applicant had raised protection claims. It was said that the first applicant’s wife and his children had not claimed to fear harm in Iran. They had not been interviewed by the delegate.
As to the first applicant’s claims that were made during interviews completed in September 2013 and October 2014, such claims as set out in [9] of the reasons of the Authority were recorded as follows:
•“While undertaking military service he was arrested by Kurdish forces and tortured. The present Iranian regime constantly questioned him as to why the Kurdish forces did not kill him.
•The Iranian government condemned him for living a western lifestyle.
•He is a Shia Muslim, but was not a part of any particular religious groups”
As to the first applicant’s claims that were made in his January 2017 visa application, such claims as set out in [10] of the reasons of the Authority were recorded as follows:
•“The first applicant became friends with a Christian man, 'A', while undertaking his military service between 1982 and 1984. The two discussed religion and this led to the applicant developing an interest in Christianity. The first applicant was then posted to Kurdistan and was not able to communicate with A for a period.
•After completing military service in 1984 he found A's house in Tehran and visited him on occasion. Through A he was introduced to some private domestic churches in Tehran. In those churches, he met more Christian people and learned more about Christianity.
•A introduced him some people in Shiraz so he could go to the domestic churches in his home city. The first applicant's wife was the only person who knew about his religious conversion and she also eagerly accepted this religion. They both began attending these domestic churches.
•One day the first applicant was not able to attend church due to illness. On that day the church group was detected bv members of the Ettela'at. The first applicant was sure the Ettela'at knew his name as it was listed in the members of the domestic church and so they could easily find him. He believed the arrested church attendees would be tortured and sentenced to death.
•He decided to come to Australia to for fear of being persecuted, arrested or even executed. He immediately left Iran with his family and fled to Australia.
•Since coming to Australia he has followed his desired religion. He and his family became members of a Christian community.
•Conversion from Islam to Christianity attracts the death penalty in Iran. The first applicant fears the authorities will kill him if he returns.”
As to the first applicant’s claims that were made in his July 2019 interview with the delegate, such claims as set out in [11] of the reasons of the Authority were recorded as follows:
•“He never accepted Islam. Since becoming interested in Christianity he did not practice Islam.
•In 1991 he was fired from his job as a driver for an oil company because he did not attend prayer. He was replaced with a strict Muslim.
•He attended home church around 10 times in Iran. The day after the home church sessions in Iran the applicant would receive a coded phone call to indicate the session had proceeded without issue. If he did not receive a call the following day it meant something was wrong.
•After the session he missed due to illness he did not receive a call. He went to see the home church organiser, 'Y'. Y explain that he had not heard anything from the group either but that two persons who ran the group had disappeared so he knew something was wrong. The applicant fears the two were arrested, would have been tortured and would have told the authorities the identities of the members of their church group. So he decided to leave the country.
•He was baptised 6 years ago in Australia. He considers he became a Christian when he was baptised, but he considered himself Christian at heart white in Iran.
•His wife only became interested in Christianity in Australia.”
At [35] and [36] of its reasons, the Authority respectively recorded what constituted a person as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
Grounds of Review
At the hearing before the Court, the applicants relied upon a Further Amended Application for Review filed on 7 April 2021. The Further Amended Grounds of Review were as follows:
“Grounds of application
The Grounds are that the Immigration Assessment Authority (‘IAA’) committed jurisdictional error requiring the decision to be quashed in that:-
1. The IAA did not properly reach a state of satisfaction when exercising its powers under s473DD(a) and (b)(ii) of the Migration Act 1958 (Cth), in that it did not properly consider, or failed to give proper, genuine and realistic consideration to whether there existed exceptional circumstances to justify considering new information provided by the applicant’s representative, nor did it assess whether the new information was credible personal information not previously known to the Minister which, had it been known, may have affected the applicant’s claim.
Particulars
(A)The letter dated 15 August 2019 from the Applicant’s representative, Kamran Ghambari (“the representative’s letter”), was rejected from consideration in so far as it went to the Applicant’s medical condition; and
(B)The letter from Dr Saman Setayesh of 22 March 2019 (“the doctor’s letter”) was rejected from consideration by the IAA.
2. The IAA failed to give realistic consideration to relevant evidence of an integer of the applicant’s claim.
Particulars
The IAA found that the applicant ‘demonstrated a profound lack of knowledge in respect of fundamental details [of Christianity]’, but failed to make any reference in its reasons to the extensive explanation provided by the applicant to the Delegate regarding the differences between Christianity and Islam.
…
4. The IAA was legally unreasonable in failing to utilise its powers under s473DC of the Migration Act to obtain information relevant to the issue of whether consideration should have been given by the IAA to the representative’s letter and the doctor’s letter.
Particulars
The IAA asserted that it was satisfied as to the Applicant’s spinal condition and need for a wheelchair (“the debilitating condition”) from information that was before the delegate. But the delegate made no reference in her decision to the Applicant’s debilitating condition. The IAA needed to ask the Applicant’s representative and doctor for information as to how the debilitating condition may have affected the Applicant’s performance at interview by the delegate, rather than speculate on the matter.
5. The IAA was legally unreasonable in failing to utilise its powers under s473DC of the Migration Act to obtain information from the Applicant’s representative and doctor relevant to the issue of whether, assuming the IAA had determined to give consideration to the representative’s letter and the doctor’s letter, the debilitating condition may have affected the Applicant’s performance at interview by the delegate, rather than speculate on the matter.”
Ground 1 of the Further Amended Application was a claim that the Authority, when exercising its powers under s. 473DD of the Act, did not consider, or failed to give proper, genuine and realistic consideration, as to whether there existed exceptional circumstances justifying its consideration of new information provided by the applicant’s representative. It was further claimed that the Authority did not assess whether the new information was credible personal information not previously known to the Minister.
Section 473DD of the Act relevantly provided as follows:
“473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”
The particulars of the claim were that a letter dated 15 August 2019 sent by the applicant’s representative to the Authority was rejected from consideration insofar as it went to the first applicant’s medical condition. In that regard, it was noted that the submission of 15 August 2019 was referred to in each of [3], [4], [5], [6] and [7] of the reasons of the Authority. At [5] of its reasons, the Authority considered the contents of the 22 March 2019 letter from Dr Saman Setayesh, and said as follows:
“[5]Also enclosed with the submissions were three letters. The first letter is from a doctor and is dated 22 March 2019. The letter explains the first applicant has a spinal injury incurred in a motor vehicle accident a number of years ago for which he underwent surgery in Australia. The injury and car accident were discussed with the delegate at interview, which the applicant stated occurred when he was detained by Kurdish forces in the 1980s. The letter is dated around 4 months before the delegate made her decision. There has been no effort to explain why this letter could not have been provided prior to the delegate's decision, how it may have affected consideration of the applicant's claims, or whether any exceptional circumstances exist that justify my consideration of it. It is dated well after the former agent stopped acting for the applicants, and therefore I am not satisfied any malfeasance of his part contributed to its delayed provision. The current representative asserts that the due to this spinal condition the first applicant requires strong pain-killers which have side-effects such as drowsiness and loss of concentration, and this impacted his ability to express himself clearly and accurately during the interview. As such it appears this letter is being provided to account for deficiencies in the applicant's evidence at interview. However the doctor's letter does not mention any such pain medication and there no medical evidence before me regarding any prescription. The applicant did not indicate he had any difficulties during the interview, including when the delegate directly inquired about his health. The applicant's lawyer has not otherwise commented on this letter. There has been no effort to identify and correct any particular errors or omissions which are allegedly attributable to this medication. As I am satisfied the applicant has a spinal condition and is reliant on a wheelchair based on information that was before the delegate, the doctor's letter is of no material relevance to my assessment. There are not exceptional circumstances that justify my consideration of this letter. Nor has the first applicant satisfied me that either limb of s.473DD(b) is met in respect of this letter. I have not considered it.”
The Authority was clearly of the view that the information contained in that doctor’s letter was not such that had it been known by the Minister before the delegate handed down a decision, a different decision might have been made. In Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481 at [29] – [34] it was said by Gageler, Keane and Nettle JJ as follows:
“[29] The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.
[30] Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered” (32).
[31] Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
[32] The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(i) is that the new information that is given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. No explication of that circumstance is required in the present case.
[33] The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable” (33). Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of ‘new information’ that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s asylum claims by the Minister” (34). The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister (35).
[34] Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.”
The Authority well appreciated that the first applicant had a spinal condition, and that he was reliant upon a wheel chair for mobilisation. The Authority accepted that the delegate also had that knowledge at the time of the protection visa interview. The letter from Dr Setayesh did not relevantly amplify upon such condition. In such circumstances, it was open for the Authority to find that there was no evidence before the Authority to suggest that had the delegate known of the contents of the letter, it was information which may have affected the consideration of the applicant’s claims, such that it could have resulted in the delegate making a different decision.
The Authority specifically found that neither limb of s. 473DD(b) was met in respect of the letter. In such circumstances, the Authority was entitled to find that there were no exceptional circumstances justifying its consideration of the contents of that letter. It did not err in so finding. As was found in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 by Markovic J, no particular formulaic consideration of s. 473DD(b) is required. When referring to the decision of the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007 at [18], Markovic J at [77] – [80] of APH17 said as follows:
“[77]At [18] of AUS17 the plurality of the High Court (Kiefel CJ, Gageler, Keane and Gordon JJ) held that the Authority had misapplied s 473DD of the Act because it was required to assess the letter against both s 473DD(b)(i) and (ii) before considering whether there were exceptional circumstances for the purposes of s 473DD(a) of the Act. Their Honours accepted that the Authority had assessed the letter against s 473DD(b)(i) before turning to consider s 473DD(a) but found that it had not considered the letter against the criterion in s 473DD(b)(ii).
[78]At [12] of their reasons, the plurality observed that the Authority does not perform the procedural duty imposed on it by s 473DD in the conduct of its review if it finds, in applying the criterion in s 473DD(a), that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria in both s 473DD(b)(i) and (ii) and then taking the outcome of that assessment into account in its assessment against the criterion in s 473DD(a). Their Honours described the nature of the non-performance of the procedural duty as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) of the Act.
[79]As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
[80]Finally, the plurality also observed that in some cases the Authority might not fall into jurisdictional error where it does not engage in an assessment of one of the limbs of s 473DD(b) where, in the circumstances of the case, the relevant limb was incapable of being met: see AUS17 at [18]. To like effect, Edelman J (who broadly agreed with the plurality) held there will be cases where the criteria in s 473DD(b) might not be relevant to s 473DD(a), for example when new country information is provided to the Authority which, his Honour considered, is plainly not personal information: see AUS17 at [24].”
There is no merit to Ground 1 of the Further Amended Application.
Ground 2 was a claim that the Authority had failed to give realistic consideration to an integer of the first applicant’s claim. It was claimed that the Authority had failed to address the claimed extensive knowledge of Christianity on the part of the first applicant, as evidenced by his exchanges with the delegate on such question, notwithstanding that the Authority had found that the first applicant had demonstrated a profound lack of knowledge in respect of Christianity.
At [17] – [20] of its reasons, the Authority dealt with the first applicant’s claim that he had practiced as a Christian in Iran. At [19] of its reasons, when finding that the first applicant’s claims did not align with country information, the Authority said as follows:
“[19]Aspects of the first applicant's narrative do not align with reports before me on the consequences of being identified as a Christian convert in Iran. For instance he asserts that his family in Iran are not aware of his claimed religious conversion or his church attendance in Iran. Reports before me suggest that family members of converts may experience official harassment, with some relatives having received numerous threats from the authorities after the Christian convert had fled the country.1. That there is no indication the authorities have ever contacted his relatives in Iran creates further doubt as to whether he was ever identified by the authorities as a religious convert and home church attendee in Iran.”
At [21] – [31] of its reasons, the Authority dealt with the first applicant’s claimed practice of the Christian faith in Australia. There were a number of respects in which the Authority was concerned about the first applicant’s narrative. At [22] of its reasons, the Authority recorded that the first applicant was unable to remember the name of the Mormon church at which he was baptised, even though he claimed that he had regularly attended there for over a year. He was also unable to answer as to what the Book of Mormon was. At [23] of its reasons, the Authority recorded that the first applicant could not remember when he was baptised. At [25] of its reasons, the Authority noted inconsistencies in the explanations of the first applicant about his firstly not being able to be baptised at the Edge Church (that being his second church), and then as to his having produced a letter from the Minister of the Edge Church which indicated that the first applicant was to be baptised at such church, notwithstanding his earlier baptism at the Mormon church. Credibility questions accordingly arose. At [27] of its reasons, the Authority recorded that the first applicant had provided very little detail about what Christian activities he had actually been involved in.
Having considered all of the evidence of the first applicant about his claimed Christian activities in Australia, the Authority made findings at [30] of its reasons as follows:
“[30]Weighing the information before me I am simply not satisfied that the first applicant is a sincere adherent to the Christian faith or that his religious activities in Australia were in furtherance of a sincere belief. He has demonstrated a profound lack of knowledge in respect of fundamental details, such as not knowing what a Mormon was, that he was baptised a Mormon, or that he attended a Mormon church for around a year. He has also been imprecise with key details of his own religious narrative. Despite suggesting he became Christian when he was baptised, he has on occasion provided significantly different dates for his baptism and has radically shifted his narrative in respect of whether he needs to be re-baptised at the Edge Church. He was able to recite certain bible passages at the interview with the delegate, but struggled to convey why those passages held particular meaning to him. His perfunctory responses when discussing Christianity, and his delay in seeking out a church Australia and only starting to attend church after being invited did not support his assertion to have developed a keen interest in Christianity more than 30 years ago or his claim to have eagerly followed his desired religion in Australia. I accept that the applicant attends church in Australia and has undergone a baptism. However I do not accept that he is a sincere follower of the Christian faith, and I consider that his religious activities in Australia were motivated mostly by a desire to obtain a favourable migration outcome.”
The Court finds that the Authority did actively intellectually engage with the first applicant’s claims about his Christian faith. This was not a case where the Authority made findings about a lack of faith on the part of an applicant because such applicant had been unable to recite chapter and verse from the Bible. This was not a case where the Authority required the first applicant to meet a particular standard of Christian knowledge so as to demonstrate his adherence to the Christian faith. The Court respectfully adopts what was said in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [37] – [39] per Kenny J:
“[37]These authorities indicate that the question whether applying an “arbitrary standard” of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.
[38] Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasise, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
[39]If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.”
There is no merit to Ground 2 of the Further Amended Application for Review.
Grounds 4 and 5 were claims that the Authority was legally unreasonable in failing to obtain information under s. 473DC of the Act concerning the first applicant’s spinal condition and his treatment insofar as he may have had his performance at the protection visa interview before the delegate adversely affected. There is no merit to such claims.
Section 473DC of the Act relevantly provided as follows:
“473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
First, an applicant claiming that a decision maker had acted in a legally unreasonable way must meet a high bar. On the question as to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] said as follows:
“[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
[42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable. Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”
In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, Kiefel CJ at [10] and [11] said as follows:
“[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal’s decision in the present case.
[11] Statements such as that made in the Wednesbury Case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies”
There was nothing before the delegate at the time of the protection visa interview to suggest that the first applicant was experiencing any difficulty in answering questions put to him by the delegate, or that the applicant was otherwise unable to understand and coherently respond to questions put to him. There was no medical evidence before the Authority suggestive of any such difficulty, or any suggestion that the first applicant would have laboured under any such difficulty because of any medication then being taken by him.
The Court accepts the submission made on behalf of the first respondent that it was well within the Authority’s area of decisional freedom for it not to obtain new information about the first applicant’s entire medical condition at the time of the protection visa interview. The decision making process in question was one undertaken in a fast track scheme of review. A decision maker such as the Authority is best placed to appreciate whether, and if so when, it ought to get further information. That the Authority did not do so in the present matter was unremarkable.
The Authority was not obliged to exercise its powers under s. 473DC of the Act. It did not err when it failed to do so.
The decision of the Authority could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicants have failed to establish jurisdictional error on the part of the Authority.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 16 September 2021
SCHEDULE OF PARTIES
ADG 344 of 2019 Applicants
Fourth Applicant:
EHW19
1
8
1